41 Ill. App. 617 | Ill. App. Ct. | 1892
The omission of the word “Court” after the word “ Circuit” in the condition of the bond, does not affect the validity of the bond, nor render it other than a statutory bond. The words, “ elected clerk of the circuit in and for the county of Union,” can only mean elected clerk of the Circuit Court in and for the county of Union. The omission of the words, “ that may come to his hands by virtue of his office to the parties,” is the only other omission that causes the bond not to be in strict compliance with the provisions of Sec. 4, Chap. 25, Starr & C. Ill. Stats. The condition of. the bond, however, which provides that, “if the said Edward M. Barn-well shall faithfully perform the duties of his office, and pay over all moneys entitled thereto and deliver up all moneys, etc., appertaining to his office, when lawfully required,” is an obligation to pay over all moneys that may come to his hands by virtue of his office to the parties entitled thereto, and the bond and condition is in substantial compliance with the statute. The condition of the bond is set out in kaeo verba and properly declared on as a statutory bond. Magner et al. v. Knowles, 67 Ill. 325; Schill v. Reisdorf, 88 Ill. 411; Hibbard et al. v. McKindley et al., 28 Ill. 240; Affeld et al. v. The People, etc., 12 Ill. App. 502. To the first breach no objection is shown, and counsel for defendants, in effect, admit it to be good. The objection most strongly urged is, that the second breach, which charges the clerk with the collection of $2,000 in money, of fees earned by former clerks and sheriffs of Union County, can not be sustained, for the reason the clerk is not a collecting officer, and it is insisted that the sureties are not liable for fees thus collected; as a matter of pleading the second breach alleges the collection of money belonging to the coxmty, which, it is alleged, was collected by the defendant Barnwell as clerk of the Circuit Court. Sec. 57 of Chap. 53, R. S., provides:
“ If there shall be any balance of salary due and unpaid to any such officer at the time of making the last return at the close of his term of office, and there be not a sufficient amount of fees collected by such officer remaining in the county treasury to pay such balance, it shall be paid to him out of the fees earned by him during his term of office when afterward collected by his successor.”
This section recognizes the right of the clerk to collect fees earned by his predecessor in office. The recognition of the right of collection of fees earned by a former clerk, by his successor in office, is the imposition of a duty to collect, and at the time of the execution of the bond that imposed dxxty existed by the statute. The fees of the office under the constitution of this State are a fund primarily liable for the payment of the salary and expense of the office, and all fees eax-ned, and not required to be so used, belong to the county. The condition of the bond includes the faithful performance of the duties of the office, and to, discharge that duty there must be a compliance with the duties imposed by the statute on the officer; of the duties so imposed is the collection of fees earned by former clerks, and of the conditions of the bond, is the obligation to pay over all moneys coming to his hands, to the parties entitled thereto. After the execution of this bond and during Barnwell’s incumbency of the office, the act of May 28, 1881, was enacted. That act created no further liability than already existed. It imposed a further duty under the liability already existing. By Sec. 1 of the Act of May 28, 1881, it is declared: “That the clerk of any court of record or sheriff of any county in this State shall, at the expiration of his term of office, pay to the treasurer of the county in which his court is held, all costs and fees collected and remaining in his hands, together with a statement of names of persons and amount due each. Provided, however, that nothing in this section shall apply to any costs or fees of such clerk or sheriff and belonging to him.” If fees come to the hands of the clerk by virtue of his office, earned by previous officers, it is the duty of such officer to pay such fees to the county treasurer. The second breach is “ That the said Edward M. Barn-well, as clerk of the Circuit Court aforesaid, collected a large sum of money to wit, etc., * * * which said fees when so collected belonged to said county of Union,” etc. If the clerk, as clerk, collected fees belonging to the county, it was his duty to pay them over, and that is the allegation of the second breach. That breach states a cause of action. It was error to sustain the demurrer. The judgment is reversed and the cause remanded.
Reversed and remanded.
